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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VICTOR STANLEY, INC.
Plaintiff
vs.
CREATIVE PIPE, INC., et al.
Defendant
CIVIL ACTION NO.
MJG-06-2662
MEMORANDUM AND ORDER
The plaintiff, Victor Stanley, Inc. (VSI or Plaintiff)
filed a motion seeking a ruling that five categories of
electronically stored documents produced by defendants Creative
Pipe, Inc. (CPI) and Mark and Stephanie Pappas (M. Pappas,
S. Pappas or The Pappasses) (collectively, Defendants) in
October, 2007, are not exempt from discovery because they are
within the protection of the attorney-client privilege and work-
product doctrine, as claimed by the Defendants. VSI argues that
the electronic records at issue, which total 165 documents, are
not privileged because their production by Defendants occurred
under circumstances that waived any privilege or protected
status. Alternatively, as for a subset of nine email
communications from M. Pappas to a computer forensics expert
Defendants retained to assist them with producing electronically
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stored information (ESI), VSI contends that the attorney-
client privilege is inapplicable, and with regard to another two
email communications (one draft, the other actually sent) from
M. Pappas to one of his attorneys, VSI contends that they are
neither privileged nor protected. Finally, as for two email
communications from M. Pappas to two of his attorneys, VSI
argues that they are beyond the scope of the attorney-client
privilege because they fall within the crime/fraud/tort
exception. Defendants acknowledge that they produced all 165
electronic documents at issue to VSI during Rule 34 discovery,
but argue that the production was inadvertent, and therefore
that privilege/protection has not been waived. As to the
various email communications, Defendants argue that they are
within the scope of the attorney-client privilege and work-
product protection, and that the crime/fraud/tort exception is
not applicable. The motion has been fully briefed, Paper Nos.
212, 221, 225, and 230, and I find that a hearing is not
necessary. Local Rules of the United States District Court for
the District of Maryland, Rule 105.6. For the reasons that
follow, I find that all 165 electronic documents are beyond the
scope of the attorney-client privilege and work-product
protection because assuming, arguendo, that they qualified as
privileged/protected in the first instance,1 and assuming further
1 The 165 documents were produced to me for review in camera.
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that Defendants properly complied with their obligation to
particularize any claims of privilege/protection imposed by Fed.
R. Civ. P. 26(b)(5), Local Rules of the United States District
Court for the District of Maryland, Appendix B, Discovery
Guideline 9.c (Discovery Guideline), and the orders of this
court detailing how such assertions must be demonstrated once
they were challenged by VSI,2 the privilege/protection was waived
Having done so, it is apparent that many do not qualify as
attorney-client privileged or work-product protected. For
example, the following documents were asserted to be privileged
or protected, yet the courts in camera review discloses that
these assertions are without merit: Doc. No. 18 (discovery
request from Plaintiff to Defendant); Doc. Nos. 28,32 (email
between employee of Creative Pipe to M. Pappas, not discussing
any materials that legitimately could be characterized as
confidential); Doc. Nos. 24, 60 (email from Plaintiffs attorney
to Defendants attorney); Doc. Nos. 56, 61-65 (email between M.
Pappas and G. Turner, Defendants ESI expert, regarding
payment); Doc. Nos. 105, 111, 130-133, 148-149, 151-158
(pictures of products, such as benches, trash can); Doc. No. 143
(page from invoice M. Pappas from attorney, no confidential
information contained). It should be noted that the Defendants
failure to comply with the courts order of December 28, 2007,
Paper No. 194, regarding how to handle assertion of
privilege/protection claims resulted in an absence from the
record of the factual basis to support their claims.
2 This court informed Defendants that they had the burden of
providing an evidentiary basis to establish each element of the
attorney-client privilege and work-product protection for each
document at issue. Letter Order, Dec. 28, 2007, Paper No. 194.
Notwithstanding, Defendants failed to do so, relying instead on
the privilege logs that they provided to VSI, which did little
more than briefly identify and describe each document and
identify the basis for the refusal to produce it. As will be
explained in this memorandum and order, when a party refuses to
produce documents during discovery on the basis that they are
privileged or protected, it has a duty to particularize that
claim. Fed. R. Civ. P. 26(b)(5), Discovery Guideline 9.c;
Caruso v. Coleman Co., CIV. A. No. 93-CV-6733, 1995 WL 384602,
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by the voluntary production of the documents to VSI by
Defendants.
Background Facts
The following facts are not subject to dispute. The
Defendants first Rule 34 response was a paper production, not
ESI, made in May 2007. Pl.s Suppl Mem. 3, Paper No. 221.
Plaintiff objected to its sufficiency, and following a hearing,
the court ordered the parties computer forensic experts to meet
and confer in an effort to identify a joint protocol to search
and retrieve relevant ESI responsive to Plaintiffs Rule 34
requests. Id. This was done and the joint protocol prepared.
Pl.s Suppl Mem. Ex. 9, Paper No. 221. The protocol contained
detailed search and information retrieval instructions,
at *1, (E.D. Pa. June 22, 1995); Bowne of New York City v.
AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993); In re Pfohl
Bros. Landfill Litig., 175 F.R.D. 13, 20 (W.D.N.Y. 1997); United
States v. Kovel, 296 F. 2d 918, 923 (2d. Cir. 1961). While a
privilege log that complies with Discovery Guideline 9.c is an
acceptable way to do so initially, once the claims of
privilege/protection have been challenged by the requesting
party, the producing party must then establish an evidentiary
basis to support the privilege/protection claim. Failure to do
so results in a forfeiture of the privilege/protection claimed.
Bowne, 150 F.R.D. at 474 (holding that if the party claiming
privilege fails to provide sufficient detail to demonstrate all
legal requirements to make out the privilege, the claim must berejected); Fox v. California Sierra Fin. Servs., 120 F.R.D. 520,
524 (N.D. Cal. 1998) (finding that a party claiming privilege as
basis for withholding discovery must properly identify each
document and the basis for the privilege claimed); In re Pfohl
Bros., 175 F.R.D. at 20 (holding [m]ere conclusory or ipse
dixit assertions of privilege fail to satisfy the burden of
demonstrating the applicability of a privilege).
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including nearly five pages of keyword/phrase search terms. It
is noteworthy that these search terms were aimed at locating
responsive ESI, rather than identifying privileged or work-
product protected documents within the population of responsive
ESI. After the protocol was used to retrieve responsive ESI,
Defendants reviewed it to locate documents that were beyond the
scope of discovery because of privilege or work-product
protection. Counsel for Defendants had previously notified the
court on March 29, 2007, that individualized privilege review of
the responsive documents would delay production unnecessarily
and cause undue expense. Pl.s Letter of Mar. 29, 2007, Paper
No. 79. To address this concern, Defendants gave their computer
forensics expert a list of keywords to be used to search and
retrieve privileged and protected documents from the population
of documents that were to be produced to Plaintiff. Id.
However, Defendants counsel also acknowledged the possibility
of inadvertent disclosure of privileged/protected documents,
given the volume of documents that were to be produced, and
requested that the court approve a clawback agreement
fashioned to address the concerns noted by this court in Hopson
v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005).3 In
3 In Hopson, this court discussed the dangers inherent in using
non-waiver agreements, such as clawback or quick-peek
agreements, and noted that reliance on them could nonetheless
result in a determination that privilege and work-product
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response, the court held a telephone conference to discuss the
proposed clawback agreement, and thereafter issued a letter
order requesting additional briefing by the parties regarding
the burdens associated with conducting a privileged [sic] review
of the information to be produced in the time frame required by
[the] discovery [schedule] in this case. Letter Order, Apr.
24, 2007, Paper No. 92. However, on April 27, 2007, Defendants
counsel notified the court that because Judge Garbis recently
had extended the discovery deadline by four months, Defendants
would be able to conduct a document-by-document privilege
protection had been waived, notwithstanding the agreement, given
the current state of the substantive law regarding privilege
waiver. Hopson, 232 F.R.D. at 236-38. The court further
identified a process that could be employed within the
boundaries of existing privilege waiver law that would
significantly improve the likelihood of avoiding privilege
waiver. The court noted:
[I]t is essential to the success of this
approach in avoiding waiver that the
production of inadvertently produced
privileged electronic data must be at the
compulsion of the court, rather than solely
by the voluntary act of the producing party,
and that the procedures agreed to by the
parties and ordered by the court demonstrate
that reasonable measures were taken to
protect against waiver of privilege and work
product protection.
Id. at 240. Defendants counsel were aware of the requirements
of Hopson. Pl.s Letter of Mar. 29, 2007, Paper No. 79. The
courts request for additional briefing regarding the burdens
associated with conducting privilege review within the time
allotted for Defendants to produce the ESI to Plaintiff was
aimed at developing a factual record that would permit a Hopson
compliant non-waiver agreement to be approved by the court.
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review, thereby making a clawback agreement unnecessary. Defs.
Letter of Apr. 27, 2007, Paper No. 93. Accordingly, Defendants
abandoned their efforts to obtain a clawback agreement and
committed to undertaking an individualized document review.
Following their privilege review, Defendants made their ESI
production to Plaintiff in September 2007. Pl.s Suppl Mem. 5,
Paper No. 221. It is noteworthy that by the time of this
production, Defendants had discharged their local attorneys,
Messrs. Mohr and Ludwig from Meyer, Klipper & Mohr, and brought
in new counsel.4
After receiving Defendants ESI production in September,
2007, Plaintiffs counsel began their review of the materials.
They soon discovered documents that potentially were privileged
or work-product protected and immediately segregated this
information and notified counsel for Defendants of its
production, following this same procedure each time they
identified potentially privileged/protected information. Pl.s
Suppl Mem. Exs. 11-15, Paper No. 221. Defendants Counsel, Mr.
Schmid, responded by asserting that the production of any
privileged or protected information had been inadvertent. Pl.s
4 It also is worth noting that Defendants current counsel, James
Rothschild, of Anderson Coe and King LLP, and Joshua Kaufman, of
Venable LLP entered their appearance after all the events that
are relevant to resolving the pending dispute had taken place
and are not responsible for any of the actions or inactions that
contributed to the courts ruling.
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Suppl Mem. Ex. 17, Paper No. 221. Defendants also belatedly
provided Plaintiff with a series of privilege logs, purportedly
identifying the documents that had been withheld from production
pursuant to Fed. R. Civ. P. 26(b) (5). Defs. Oppn Mem. Exs.
4, 6, and 9, Paper No. 225.
The parties disagree substantially in their
characterization of how Defendants conducted their review for
privileged and protected documents before the ESI productions
were made to Plaintiff. Defendants contend that after the joint
ESI search protocol was implemented and the responsive ESI
identified, their computer forensics expert, Ms. Genevive
Turner, conducted a privilege search using approximately
seventy different keyword search terms . . . [that] had been
decided upon previously by Mr. Pappas, his former attorney,
Christopher Mohr, and another attorney, F. Stephen
Schmid . . . . All documents which were returned during the
keyword search were segregated and provided to one of Mr.
Pappas attorneys, John G. Monkman, Jr. for the first phase of
the pre-production privilege review. Defs. Oppn Mem. 4, Ex.
1 (Pappas Aff.) and Ex. 3 (Monkman Aff.), Paper No. 225. This
characterization, however, is somewhat misleading. In
actuality, after the joint retrieval protocol had been executed,
Ms. Turner determined that there were some ESI files (4.9
gigabytes) that were in text-searchable format and others (33.7
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gigabytes) that were not. Defs. Oppn Mem. Ex. 2 (Turner Aff.
. 7), Paper No. 225. Turner conducted a search for privileged
material on the text-searchable files using the seventy keywords
developed by M. Pappas, Mohr and Schmid. As to the nontext-
searchable files, she produced them to Monkman for manual
privilege review. Turner Aff. 6-7. Monkman reviewed each of
the files identified as privileged/protected by Turner based on
her keyword searches. Monkman Aff. 7. Additionally, Monkman
and M. Pappas teamed up to begin doing a page-by-page manual
privilege review of the nontext-searchable ESI files. Id. at
8. According to Monkman: [t]he second phase of review
consisted of page-by-page review of . . . [the non text-
searchable ESI files], which was undertaken by Mr. Pappas and
me. However, due to the compressed schedule and time
constraints in reviewing these tens of thousands of documents
within the time permitted, this review was undertaken by
reviewing the page titles of the documents. Documents whose
page titles indicated that the privilege might be applicable
were reviewed in their entirety by Mr. Pappas or me. This was
the only way for us to complete the unwieldy review of these
documents within the time permitted. Id.
The foregoing affidavits create the impression that the
keyword search Turner conducted on the text-searchable ESI
files, using the seventy keywords developed by M. Pappas and his
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attorneys, successfully culled out the privileged/protected
documents; and this status was confirmed by Monkmans review,
and they were withheld from production. Further, the
Defendants characterization of the privilege review suggests
that as to the non-text searchable files, Pappas and Monkman did
all that could be reasonably expected of them in the time
allowed to make the ESI production, which was to review only the
title page of the documents and not their entire content. From
the affidavits Defendants provided, the court is left to infer
that the text-searchable documents that were not flagged by the
keyword search Turner conducted were produced to the Plaintiff,
as well as the nontext-searchable files that Monkman and M.
Pappas determined were not privileged or protected based on
their limited title-page review. This is because the Defendants
fail to delineate exactly which documents were and were not
provided to the Plaintiff, or where the 165 documents at issue
were located within the ESI productions made to the Plaintiff.
The implied conclusion that the court is invited to draw,
from the limited information provided by the Defendants, is that
the 165 documents that are the subject of the present motion
were contained within the population of nontext-searchable ESI
files that were produced by the Defendants to the Plaintiff,
making their production inadvertent. However, this inference is
not so easily drawn.
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First, the Defendants are regrettably vague in their
description of the seventy keywords used for the text-searchable
ESI privilege review, how they were developed, how the search
was conducted, and what quality controls were employed to assess
their reliability and accuracy. While it is known that M.
Pappas (a party) and Mohr and Schmid (attorneys) selected the
keywords, nothing is known from the affidavits provided to the
court regarding their qualifications for designing a search and
information retrieval strategy that could be expected to produce
an effective and reliable privilege review. As will be
discussed, while it is universally acknowledged that keyword
searches are useful tools for search and retrieval of ESI, all
keyword searches are not created equal; and there is a growing
body of literature that highlights the risks associated with
conducting an unreliable or inadequate keyword search or relying
exclusively on such searches for privilege review.
Additionally, the Defendants do not assert that any sampling was
done of the text searchable ESI files that were determined not
to contain privileged information on the basis of the keyword
search to see if the search results were reliable. Common sense
suggests that even a properly designed and executed keyword
search may prove to be over-inclusive or under-inclusive,
resulting in the identification of documents as privileged which
are not, and non-privileged which, in fact, are. The only
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prudent way to test the reliability of the keyword search is to
perform some appropriate sampling of the documents determined to
be privileged and those determined not to be in order to arrive
at a comfort level that the categories are neither over-
inclusive nor under-inclusive. There is no evidence on the
record that the Defendants did so in this case. Rather, it
appears from the information that they provided to the court
that they simply turned over to the Plaintiff all the text-
searchable ESI files that were identified by the keyword search
Turner performed as non-privileged, as well as the non-text
searchable files that Monkman and M. Pappas limited title page
search determined not to be privileged.
The Plaintiff paints an entirely different picture of the
Defendants privilege review. VSI vigorously disputes
Defendants assertion that the text-searchable ESI received by
Defendants computer forensic expert, Turner, following the
execution of the joint search and retrieval protocol was in a
format that was difficult to search for privileged or protected
materials. Plaintiff contends that it was able to do a keyword
search of the text-searchable ESI produced by Defendants in
about one hour using a readily-available desktop search tool.
Pl.s Reply Mem. 3 and Ex. 1 (Slaughenhoupt Aff. 6), Paper No.
230. VSI further contends that the nontext-searchable files
that Monkman and M. Pappas reviewed by looking at the title
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pages consisted primarily of image files, such as photographs,
catalogs, and drawings, which are not likely to contain
privileged or protected information. Id. at 9. Most
importantly, however, the Plaintiff argues that the Defendants
complaint--that they could not effectively conduct a privilege
review of the nontext-searchable files because there were so
many of them--is a red herring because the privileged materials
[that are the subject of this motion] were all in text and thus
were all searchable using standard text search tools. Contrary
to Mr. Pappas assertion, a majority of the .PDF files in the
ESI were searchable using readily available search tools. The
ESI contained 9008 .PDF files, the majority of which were
searchable and the remaining could have been made searchable
using readily available OCR software and/or the native OCR Text
Recognition tool within Adobe Acrobat. Id. at 8.
Thus, according to the Plaintiff, the Defendants have
waived any claim to attorney client privilege or work-product
protection for the 165 documents at issue because they failed to
take reasonable precautions by performing a faulty privilege
review of the text-searchable files and by failing to detect the
presence of the 165 documents, which were then given to the
Plaintiff as part of Defendants ESI production. As will be
seen, under either the Plaintiffs or Defendants version of the
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events, the Defendants have waived any privilege or protected
status for the 165 documents in question.
Applicable Law
As this court discussed in some detail in Hopson, 232
F.R.D. at 235-38, courts have taken three different approaches
when deciding whether the inadvertent production to an adversary
of attorney client privileged or work-product protected
materials constitutes a waiver. Under the most lenient approach
there is no waiver because there has not been a knowing and
intentional relinquishment of the privilege/protection; under
the most strict approach, there is a waiver because once
disclosed, there can no longer be any expectation of
confidentiality; and under the intermediate one, the court
balances a number of factors to determine whether the producing
party exercised reasonable care under the circumstances to
prevent against disclosure of privileged and protected
information, and if so, there is no waiver. Id. As also noted
in Hopson, the Fourth Circuit Court of Appeals has yet to decide
which approach it will follow, although individual district
courts within the circuit have adopted the intermediate
balancing approach. Id. at 236 n.18; see also Contl Cas. Co.
v. Under Armour, Inc., 537 F. Supp. 2d 761, 768 n.3 (D. Md.
2008). As Hopson pointed out, however, a careful reading of the
Fourth Circuits decisions regarding waiver of the attorney-
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client privilege, albeit in contexts not closely related to the
facts of this case,5 suggest that it is more inclined to adopt
5 None of the Fourth Circuit cases reviewed in Hopson examined
privilege waiver in the context of a voluminous document
production during discovery in a civil case, and none of them
considered the extra challenges of preventing privilege waiver
posed by handling voluminous production of ESI, which is a
relatively new phenomenon. The advisory committee notes to
recently amended Fed. R. Civ. P. 26(b)(5) acknowledge these
challenges:
The Committee [on the Rules of Practice and
Procedure] has repeatedly been advised that
the risk of privilege waiver and the work
necessary to avoid it, add to the costs and
delay of discovery. When the review is of
electronically stored information, the risk
of waiver, and the time and effort required
to avoid it, can increase substantially
because of the volume of electronically
stored information and the difficulty in
ensuring that all information to be produced
has in fact been reviewed.
Fed. R. Civ. P. 26 advisory committees note. Notwithstanding
this recognition, however, the recently adopted rules of civilprocedure relating to ESI do not effect any change in the
substantive law of privilege waiver, as was discussed in some
detail in Hopson, supra, because the Rules Enabling Act
precludes creation or abrogation of any privilege by ordinary
rule making. This is reserved for Congress. 28 U.S.C.
2074(b) (1988). Following the Hopson decision, however, the
Advisory Committee on the Rules of Evidence conducted hearings
on this issue and, following public comment, proposed a new rule
of evidence: Rule 502. The Committee approved the proposed rule
and the Judicial Conference then forwarded it to Congress where
it was passed by the Senate as S. 2450. It is still pending in
the House of Representatives. If enacted by Congress, Proposed
Federal Evidence Rule 502 would solve the problems Hopson
discussed and protect against privilege waiver under
circumstances similar to those presented in this case if the
parties entered into a non-waiver agreement that meets the
requirements of the proposed rule, and the court, in turn,
approved it. Until this happens, however, the procedures
identified in Hopson are the only ones that provide a possible
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the strict approach than the intermediate or lenient one.
Hopson, 232 F.R.D. at 236-37. Under the strict approach, there
is no legitimate doubt that Defendants production of the 165
asserted privileged/protected documents waived the attorney-
client privilege and work-product protection.6 Even under the
intermediate test, however, the result would be the same.7
means of avoiding waiver in those jurisdictions that have not
recognized the intermediate approach to waiver by inadvertent
production (and, as noted, the Defendants initially sought to
enter a non-waiver agreement such as discussed in Hopson, but
then abandoned this effort). Should the issue of privilege
waiver by inadvertent production of voluminous ESI be considered
by the Fourth Circuit at some time in the future, it may be
hoped that the court will be cognizant of the unique problems
presented with regard to avoiding privilege waiver presented by
ESI discovery, as well as the fact that the approval of Proposed
Evidence Rule 502 by the Committee on the Rules of Evidence, as
well as the Judicial Conference, recognizes a need to provide
relief in this difficult area. The substantive law of privilege
is not rigid and inflexible, Hopson, 232 F.R.D. at 240(citing
Jaffee v. Redmond, 518 U.S. 1, 8 (1996)), but is governed by
principles of the common law as interpreted by the courts of
the United States in the light of reason and experience. Fed.
R. Evid. 501. Experience has now shown that ESI discovery
presents unique, heretofore unrecognized, risks of waiver of
privilege or work-product protection even when the party
asserting the privilege or protection has exercised care not to
waive it. The approval of Proposed Evidence Rule 502 by the
Judicial Conference is a reasoned response to this new
experience, but still pending in Congress. For those courts
that have yet to decide which approach to follow regarding the
inadvertent disclosure of privileged material during ESI
discovery, the commentary to the proposed rule is worthy ofconsideration.
6 As noted in Continental Casualty Co. v. Under Armour, Inc., 537
F. Supp. 2d 761 (D. Md. 2008), if documents qualify as both
attorney-client privileged and work-product protected, separate
analysis is required to determine whether inadvertent production
constitutes waiver. However, the majority view is that
disclosure of work-product material in a manner that creates a
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The intermediate test requires the court to balance the
following factors to determine whether inadvertent production of
attorney-client privileged materials waives the privilege: (1)
the reasonableness of the precautions taken to prevent
inadvertent disclosure; (2) the number of inadvertent
disclosures; (3) the extent of the disclosures; (4) any delay in
measures taken to rectify the disclosure; and (5) overriding
substantial risk that an adversary will receive it waives the
protection. Id. at 772-73 (citing Restatement (Third) of theLaw Governing Lawyers 91 (2000)). In this case, Defendants
voluntary, though inadvertent, production of the 165 documents
directly to counsel for the Plaintiff waived any work-product
protection they may have had. Id.
7 Citing dicta in Hopson, 232 F.R.D. at 237 n.27, Defendants
argue that state privilege waiver law controls the determination
of whether the inadvertent production of privileged ESI waived
the privilege, at least as to the supplemental state law claims
that have been pleaded by Plaintiff. Defs. Oppn Mem. 10 n.4,
Paper No. 225. And, as they correctly note, the Maryland Court
of Special Appeals has adopted the intermediate test in Elkton
Care Center Associates, Ltd. Partnership v. Quality Care
Management, 145 Md. App. 532, 805 A.2d 1177 (2002). However, as
this court more recently pointed out in Continental Casualty
Co., 537 F. Supp. 2d at 768 n.3, (citing cases), the majority of
federal courts that have addressed the issue of what privilege
law to apply in federal cases where both federal and state
claims are pending, and where the law of privilege is different
under federal law than it is under state law, have concluded
that federal privilege law trumps state privilege law. If for
no other reason than an appreciation of the shortness of life, a
court ought not to be required to parse out competing outcomesunder differing state and federal privilege law to apply to the
same core facts presented in litigation that spawned both
federal and state claims is a time consuming and challenging
task. I agree that following the majority view is a better
approach, and so adopt it in this decision. Consequently,
federal privilege waiver law will apply to both the federal and
state claims.
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interests in justice. McCaffertys, Inc., v. Bank of Glen
Burnie, 179 F.R.D. 163, 167 (D. Md. 1998) (citing cases). The
first of these factors militates most strongly in favor of a
finding that Defendants waived the privilege in this case.
Assuming that the Plaintiffs version of how Defendants
conducted their privilege review is accurate,8 the Defendants
obtained the results of the agreed-upon ESI search protocol and
ran a keyword search on the text-searchable files using
approximately seventy keywords selected by M. Pappas and two of
his attorneys. Defendants, who bear the burden of proving that
their conduct was reasonable for purposes of assessing whether
they waived attorney-client privilege by producing the 165
documents to the Plaintiff, have failed to provide the court
with information regarding: the keywords used; the rationale for
their selection; the qualifications of M. Pappas and his
attorneys to design an effective and reliable search and
information retrieval method; whether the search was a simple
keyword search, or a more sophisticated one, such as one
employing Boolean proximity operators;9 or whether they analyzed
8 Which, on the record before me, the Defendants do not rebut.9 Keyword searching may be accomplished in many ways. The
simplest way is to use a series of individual keywords. Using
more advanced search techniques, such as Boolean proximity
operators, can enhance the effectiveness of keyword searches.
Boolean proximity operators are derived from logical principles,
named for mathematician George Boole, and focus on the
relationships of a set of objects or ideas. Thus, combining a
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the results of the search to assess its reliability,
appropriateness for the task, and the quality of its
implementation. While keyword searches have long been
recognized as appropriate and helpful for ESI search and
retrieval, there are well-known limitations and risks associated
with them, and proper selection and implementation obviously
involves technical, if not scientific knowledge. See, e.g.,
United States v. OKeefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008)
(Whether search terms or keywords will yield the information
sought is a complicated question involving the interplay, at
keyword with Boolean operators such as OR, AND, NOT, and
using parentheses, proximity limitation instructions, phrase
searching instructions, or truncation and stemming instructions
to require a logical order to the execution of the search can
enhance the accuracy and reliability of the search. The Sedona
Conference Best Practices Commentary on the Use of Search &
Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J.
(2007) at 200, 202, 217-18 (Sedona Conference Best Practices);
Information Inflation: Can the Legal System Adapt?, 13 Rich. J.
L. & Tech. 10 (2007) at *37-41 (as cited at www.westlaw.com).
In addition to keyword searches, other search and information
retrieval methodologies include: probabilistic search models,
including Bayesian classifiers (which searches by creating a
formula based on values assigned to particular words based on
their interrelationships, proximity, and frequency to establish
a relevancy ranking that is applied to each document searched);
Fuzzy Search Models (which attempt to refine a search beyond
specific words, recognizing that words can have multiple forms.
By identifying the core for a word the fuzzy search can
retrieve documents containing all forms of the target word);Clustering searches (searches of documents by grouping them by
similarity of content, for example, the presence of a series of
same or similar words that are found in multiple documents); and
Concept and Categorization Tools (search systems that rely on
a thesaurus to capture documents which use alternative ways to
express the same thought). SeeSedona Conference Best
Practices, supra, at 217-23.
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least, of the sciences of computer technology, statistics and
linguistics . . . . Given this complexity, for lawyers and
judges to dare opine that a certain search term or terms would
be more likely to produce information than the terms that were
used is truly to go where angels fear to tread.);
Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333
(D.D.C. 2008), ([D]etermining whether a particular search
methodology, such as keywords, will or will not be effective
certainly requires knowledge beyond the ken of a lay person (and
a lay lawyer) . . . .);10 In re Seroquel Prods. Liab. Litig.,
10 The OKeefe and Equity Analytics opinions have raised the
eyebrows of some commentators who have expressed the concern
that they engraft [Fed. R. Evid.] 702 (and [Fed. R. Evid.
104(a) into discovery . . . [which, it is feared] would multiply
the costs of discovery, and, it is argued, this is a path
[that] is rife with unintended consequences. See, e.g., Rule
702 and Discovery of Electronically Stored Information,8 Digital Discovery & E-Evidence (BNA) No. 5, at p. 3 (May 1,
2008). A careful reading of OKeefe and Equity Analytics,
however, should allay these concerns. In neither case did the
court expressly hold that Fed. R. Evid. 702 and 104(a) were
engrafted into the rules of discovery in civil proceedings
(indeed, neither opinion even mentions Rule 104(a)). Instead,
Judge Facciola made the entirely self-evident observation that
challenges to the sufficiency of keyword search methodology
unavoidably involve scientific, technical and scientific
subjects, and ipse dixit pronouncements from lawyers unsupported
by an affidavit or other showing that the search methodology was
effective for its intended purpose are of little value to a
trial judge who must decide a discovery motion aimed at either
compelling a more comprehensive search or preventing one.
Certainly those concerned about the OKeefe and Equity Analytics
opinions would not argue that trial judges are not required to
make fact determinations during discovery practice. Indeed,
such fact determinations inundate them. For example, deciding
whether ESI discovery is not reasonably accessible because of
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undue burden or cost (Fed. R. Civ. P. 26(b)(2)(B)) involves
factual determinations, as does determining whether discovery
sought is too expensive or burdensome under Fed. R. Civ. P.
26(b)(2)(C); determining whether sanctions should be imposed for
failing to preserve ESI or if the loss was a result of theroutine, good faith operation of an electronic information
system under Fed. R. Civ. P. 37(e); or determining whether
documents withheld from disclosure are privileged or protected.
Certainly the court is entitled to reliable factual information
on which to make such rulings. It cannot credibly be denied
that resolving contested issues of whether a particular search
and information retrieval method was appropriate --in the
context of a motion to compel or motion for protective order--
involves scientific, technical or specialized information. If
so, then the trial judge must decide a methods appropriateness
with the benefit of information from some reliable source--whether an affidavit from a qualified expert, a learned
treatise, or, if appropriate, from information judicially
noticed. To suggest otherwise is to condemn the trial court to
making difficult decisions on inadequate information, which
cannot be an outcome that anyone would advocate. For example,
in the analogous technical area of sampling ESI, courts have
recognized the need to have expert assistance to develop a valid
random sampling protocol. See, e.g., In re Vioxx Products
Liability Litigation, No. 06-30378, 06-30379 2006 W.L. 1726675,
at *2 n.5 (5th Cir. May 26, 2006) (By random sampling, we mean
adhering to a statistically sound protocol for samplingdocuments . . . . The parties must provide expert assistance to
the district court in constructing any protocol.); Manual for
Complex Litigation (Fourth) 11.446 (2004) (The complexity and
rapidly changing character of technology for the management of
computerized materials may make it appropriate for the judge
to . . . call on the parties to provide the judge with expert
assistance, in the form of briefings on the relevant
technological issues.). Indeed, it is risky for a trial judge
to attempt to resolve issues involving technical areas without
the aid of expert assistance. In American National Bank & Trust
Co. v. Equitable Life Assurance Society, 406 F.3d 867, 879 (7th
Cir. 2005), the court reversed a magistrate judges sanctions
ruling that was predicated on sampling methodology the judge
developed, and which the appellate court characterized as
arbitrary and lacking logical foundation.
Moreover, if the court is to be given scientific or
technical information to resolve a contested discovery matter,
what standards should govern its evaluation? Should the court
ignore a purported ESI experts lack of qualifications if that
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shortcoming is demonstrated by the party opposing his opinion?
Should the court accept opinions shown to be unsupported by
sufficient facts or based on demonstrably unreliable
methodology? The answer is obviously No. Viewed in its
proper context, all that OKeefe and Equity Analytics requiredwas that the parties be prepared to back up their positions with
respect to a dispute involving the appropriateness of ESI search
and information retrieval methodology--obviously an area of
science or technology--with reliable information from someone
with the qualifications to provide helpful opinions, not
conclusory argument by counsel. The goal of Federal Rule of
Evidence 702 is to set standards to determine whether
information is helpful to those who must make factual
determinations involving disputed areas of science, technology
or other specialized information. The rule is one of common
sense, and reasonopinions regarding specialized, scientific or
technical matters are not helpful unless someone with proper
qualifications and adequate supporting facts provided such an
opinion after following reliable methodology. That these common
sense criteria are found in the rules of evidence does not
render them off-limits for consideration during discovery. It
is not unusual for pretrial factual determinations in civil
cases to look to the Federal Rules of Evidence for assistance in
resolving fact disputes. Indeed, in summary judgment practice,
Fed. R. Civ. P. 56(e) requires that the parties support their
motions with such facts as would be admissible in evidence.
The message to be taken from OKeefe,Equity Analytics, and this
opinionis that when parties decide to use a particular ESI
search and retrieval methodology, they need to be aware of
literature describing the strengths and weaknesses of various
methodologies, such as The Sedona Conference Best Practices,
supra, n.9, and select the one that they believe is most
appropriate for its intended task. Should their selection be
challenged by their adversary, and the court be called upon to
make a ruling, then they should expect to support their position
with affidavits or other equivalent information from persons
with the requisite qualifications and experience, based on
sufficient facts or data and using reliable principles or
methodology.
For those understandably concerned about keeping discovery
costs within reasonable bounds, it is worth repeating that the
cost-benefit balancing factors of Fed. R. Civ. P. 26(b)(2)(C)
apply to all aspects of discovery, and parties worried about the
cost of employing properly designed search and information
retrieval methods have an incentive to keep the costs of this
phase of discovery as low as possible, including attempting to
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244 F.R.D. 650, 660 n.6, 662 (M.D. Fla. 2007) (criticizing
defendants use of keyword search in selecting ESI for
production, noting the failure of the defendant to provide
information as to how it organized its search for relevant
material, [or] what steps it took to assure reasonable
completeness and quality control and observing that while key
word searching is a recognized method to winnow relevant
documents from large repositories . . . [c]ommon sense dictates
confer with their opposing party in an effort to identify a
mutually agreeable search and retrieval method. This minimizes
cost because if the method is approved, there will be no dispute
resolving its sufficiency, and doing it right the first time is
always cheaper than doing it over if ordered to do so by the
court. Additionally, cost can be minimized by entering into a
court-approved agreement that would comply with Hopson, or if
enacted, Proposed Evidence Rule 502. In addition, there is room
for optimism that as search and information retrieval
methodologies are studied and tested, this will result in
identifying those that are most effective and least expensive to
employ for a variety of ESI discovery tasks. Such a study has
been underway since 2006, when the National Institute of
Standards and Technology (NIST), an agency within the U.S.
Department of Commerce, embarked on a cooperative endeavor with
the Department of Defense to evaluate the effectiveness of a
variety of search methodologies. This project, known as the
Text Retrieval Conference (TREC), evolved into the Trec
LegalTrack, a research effort aimed at studying the e-discovery
review process to evaluate the effectiveness of a wide array of
search methodologies. This evaluative process is open to
participation by academics, law firms, corporate counsel and
companies providing ESI discovery services. See: http://trec-
legal.umiacs.umd.edu. The next test will occur in the summer of2008. The goal of the project is to create industry best
practices for use in electronic discovery. This project can be
expected to identify both cost effective and reliable search and
information retrieval methodologies and best practice
recommendations, which, if adhered to, certainly would support
an argument that the party employing them performed a reasonable
ESI search, whether for privilege review or other purposes.
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that sampling and other quality assurance techniques must be
employed to meet requirements of completeness.); The Sedona
Conference Best Practices Commentary on the Use of Search &
Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J.
189, 194-95, 201-02 ([A]lthough basic keyword searching
techniques have been widely accepted both by courts and parties
as sufficient to define the scope of their obligation to perform
a search for responsive documents, the experience of many
litigators is that simple keyword searching alone is inadequate
in at least some discovery contexts. This is because simple
keyword searches end up being both over- and under-inclusive in
light of the inherent malleability and ambiguity of spoken and
written English (as well as all other languages).). Id. at
194-95. To address this known deficiency, the Sedona Conference
suggests as best practice points, inter alia:
Practice Point 3. The choice of a specific
search and retrieval method will be highly
dependent on the specific legal context in
which it is to be employed.
Practice Point 4. Parties should perform due
diligence in choosing a particular
information retrieval product or service
from a vendor.
Practice Point 5. The use of search and
information retrieval tools does not
guarantee that all responsive documents will
be identified in large data collections, due
to characteristics of human language.
Moreover, differing search methods may
produce differing results, subject to a
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measure of statistical variation inherent in
the science of information retrieval.
Practice Point 6. Parties should make a good
faith attempt to collaborate on the use of
particular search and information retrieval
methods, tools and protocols (including as
to keywords, concepts, and other types of
search parameters).
Practice Point 7. Parties should expect that
their choice of search methodology will need
to be explained, either formally or
informally, in subsequent legal contexts
(including in depositions, evidentiary
proceedings, and trials).
Id.; and Information Inflation: Can the Legal System Adapt, 13
Rich. J.L. & Tech. 10, at *38, 40 (as cited at www.westlaw.com)
([I]t is not surprising that lawyers and those to whom they
delegate search tasks may not be particularly good at ferreting
out responsive information through use of simple keyword search
terms. . . . Accordingly, the assumption on the part of lawyers
that any form of present-day search methodology will fully find
all or nearly all available documents in a large,
heterogeneous collection of data is wrong in the extreme.).
Use of search and information retrieval methodology, for
the purpose of identifying and withholding privileged or work-
product protected information from production, requires the
utmost care in selecting methodology that is appropriate for the
task because the consequence of failing to do so, as in this
case, may be the disclosure of privileged/protected information
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to an adverse party, resulting in a determination by the court
that the privilege/protection has been waived. Selection of the
appropriate search and information retrieval technique requires
careful advance planning by persons qualified to design
effective search methodology. The implementation of the
methodology selected should be tested for quality assurance; and
the party selecting the methodology must be prepared to explain
the rationale for the method chosen to the court, demonstrate
that it is appropriate for the task, and show that it was
properly implemented. In this regard, compliance with the
Sedona Conference Best Practices for use of search and
information retrieval will go a long way towards convincing the
court that the method chosen was reasonable and reliable, which,
in jurisdictions that have adopted the intermediate test for
assessing privilege waiver based on inadvertent production, may
very well prevent a finding that the privilege or work-product
protection was waived.
In this case, the Defendants have failed to demonstrate
that the keyword search they performed on the text-searchable
ESI was reasonable. Defendants neither identified the keywords
selected nor the qualifications of the persons who selected them
to design a proper search; they failed to demonstrate that there
was quality-assurance testing; and when their production was
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challenged by the Plaintiff, they failed to carry their burden
of explaining what they had done and why it was sufficient.
Further, the Defendants attempt to justify what was done,
by complaining that the volume of ESI needing review and time
constraints presented them with no other choice is simply
unpersuasive. Defendants were aware of the danger of
inadvertent production of privileged/protected information and
initially sought the protections of a non-waiver agreement such
as that discussed in Hopson, supra. Had they not voluntarily
abandoned their request for a court-approved non-waiver
agreement, they would have been protected from waiver. Instead,
they advised the court that they did not need this protection
and elected to do a document-by-document privilege review.
According to Defendants version of the facts, when they
undertook an individualized review of the nontext-searchable ESI
and determined that they could only review the title pages, they
neither sought an extension of time from the court to complete
an individualized review nor reinstated their request for a
court-approved non-waiver agreement, despite their awareness of
how it would have provided protection against waiver. In these
circumstances, Defendants protests that they did their best and
that their conduct was reasonable rings particularly hollow.
The remaining factors to be assessed under the intermediate
test may be quickly disposed of. The Defendants produced 165
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asserted privileged/protected documents to the Plaintiff, so
this case does not present an instance of a single document
slipping through the cracks. Further, the courts in camera
review of the documents reflects that many of them are email and
other communications between the Defendants and their various
attorneys, as well as draft discovery responses, documents
relating to settlements in unrelated litigation, comments from
M. Pappas to counsel regarding discovery responses, and email
correspondence between M. Pappas and Ms. Turner, the ESI
forensic expert retained by Defendants. Thus, the disclosures
were substantive including numerous communications between
defendants and their counsel. As noted by other district courts
within the Fourth Circuit, any order issued now by the court to
attempt to redress these disclosures would be the equivalent of
closing the barn door after the animals have already run away.
FDIC v. Marine Midland Realty Credit Corporation, 138 F.R.D.
479,483 (E.D. Va., 1991) (Any order issued now by the court
would have only limited effect; it could not force NBNE to
forget what has already been learned); Parkway Gallery
Furniture, Inc. v. Kittinger/Pennsylvania House Group, 116
F.R.D. 46, 52 (M.D.N.C. 1987) ([W]hen disclosure is complete, a
court order cannot restore confidentiality and, at best, can
only attempt to restrain further erosion.). And, while the
precise dates of the disclosures of the documents at issue are
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not clear from the record--since the Defendants made a series of
ESI productions over a several week period-- it is noteworthy
that the Defendants did not discover the disclosure, but rather
the Plaintiff made the discovery and notified the Defendants
that potentially privileged/protected ESI had been produced.
Therefore, this is not an instance in which a party
inadvertently produced privileged information to an adversary,
discovered the disclosure promptly, and then took immediate
steps to inform the adversary that they had received the
information inadvertently, thus demanding that it be returned.
While Defendants counsel did assert privilege and
inadvertent production promptly after being notified by the
Plaintiff of the production of possible privileged/protected
information, the more important period of delay in this case is
the one-week period between production by the Defendants and the
time of the discovery by the Plaintiff of the disclosures -- a
period during which the Defendants failed to discover the
disclosure. Finally, the Defendants have pointed to no
overriding interests in justice that would excuse them from the
consequences of producing privileged/protected materials. The
Plaintiff is blameless, but the Defendants are not, having
failed to take reasonable precautions to prevent the disclosure
of privileged information, including the voluntary abandonment
of the non-waiver agreement that the Plaintiff was willing to
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sign. Every waiver of the attorney-client privilege produces
unfortunate consequences for the party that disclosed the
information. If that alone were sufficient to constitute an
injustice, there would never be a waiver. The only injustice
in this matter is that done by Defendants to themselves. Marine
Midland Realty Credit Corp., 138 F.R.D. at 483 (It is seldom
fundamentally unfair to allow the truth to be made public, and
under the circumstances . . . the Court finds that it would not
be fair to reward Rowes carelessness [in disclosing privileged
materials] with a protective order.). Accordingly, even under
the intermediate test, the Defendants are not insulated from
waiver.
Sufficiency of Defendants Assertion of Privilege/Protection
In addition to arguing that the Defendants waived any
privileged or protected status that the disclosed documents had,
the Plaintiff also appears to contend that the Defendants failed
to properly establish the existence of the privilege and
protection asserted in the first instance. Specifically, the
Plaintiff argues that despite the requirements of Fed. R. Civ.
P. 26(b)(5) and Discovery Guideline 5.c of this court that
claims of privilege must be particularized, the Defendants
failed to meet this obligation, and further, failed to comply
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with an order of this court11 regarding the proper way to assert
privilege in responding to discovery requests. See Pl.s Suppl
Mem. 1,6,10, Paper No. 221; Pl.s Reply Mem. 1, Paper No. 230.
While Defendants do not deny that they failed to comply with the
courts order, they contend that when the parties met to confer
regarding the sufficiency of the Defendants
privilege/protection claims, the parties essentially came to
an agreement that for all but eleven of the 165 documents at
issue, the asserted privilege/protection was legitimate.12
Accordingly, Defendants argue that if the waiver issue is
decided in their favor, there are only eleven documents for
which the assertion of privilege/protection is challenged by
Plaintiff. Defs. Oppn Mem. 6-7, Paper No. 225. Having
decided the waiver issue against the Defendants, there is no
need to reach the question of whether privilege/protection was
properly asserted in the first instance. However, given the
recurring problems associated with resolving disputed
privilege/protection claims during discovery, it would be
11See, e.g., Letter Order, Dec. 28, 2007, Paper No. 194
([W]ithin 30 days, Defendant[s] shall provide to Plaintiff an
affidavit or other similar evidentiary support to establish eachelement of each privilege or work product protection asserted
for each document for which privilege or work product is
claimed.).
12 As noted supra, footnote 1, the courts in camera review of
the documents confirmed that there were numerous documents for
which no legitimate claim of privilege or protection could be
sustained.
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helpful to state the procedures that need to be followed in this
process for the benefit of future cases.
While the scope of discovery in civil cases broadly
encompasses facts relevant to the claims and defenses raised in
the pleadings, and, on a showing of good cause, may even be
extended to facts relevant to the subject matter of the
litigation, Fed. R. Civ. P. 26(b) (1), it does not include
privileged information. Id. Similarly, work-product protected
information is beyond the reach of discovery unless the
requesting party makes a showing of substantial need for the
information and inability to obtain its substantial equivalent
without undue hardship. Fed. R. Civ. P. 26(b) (3). Because the
responding party is entitled to refuse to produce requested
discovery if it is privileged or work product protected, the
rules require that when doing so, the responding party must
describe the nature of the documents, communications, or
tangible things not produced or disclosed--and do so in a manner
that, without revealing information itself privileged or
protected, will enable other parties to assess the claim. Fed.
R. Civ. P. 26(b) (5) (A) (ii). This requirement was added in
the 1993 amendments to the rules of civil procedure, and in the
words of the advisory committee:
The party [asserting privilege/protection]
must also provide sufficient information to
enable other parties to evaluate the
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applicability of the claimed privilege or
protection. Although the person from whom
the discovery is sought decides whether to
claim a privilege or protection, the court
ultimately decides whether, if this claim is
challenged, the privilege or protection
applies. Providing information pertinent to
the applicability of the privilege or
protection should reduce the need for in
camera examination of the documents.
Fed. R. Civ. P. 26 advisory committees note. Neither the rule
nor the advisory committee comment specifies exactly how the
party asserting privilege/protection must particularize its
claim. The most common way is by using a privilege log, which
identifies each document withheld, information regarding the
nature of the privilege/protection claimed, the name of the
person making/receiving the communication, the date and place of
the communication, and the documents general subject matter.
See, e.g.,Discovery Guideline 9.c.; Paul W. Grimm, Charles S.
Fax, & Paul Mark Sandler, Discovery Problems and Their
Solutions, 62-64 (2005)(To properly demonstrate that a
privilege exists, the privilege log should contain a brief
description or summary of the contents of the document, the date
the document was prepared, the person or persons who prepared
the document, the person to whom the document was directed, or
for whom the document was prepared, the purpose in preparing the
document, the privilege or privileges asserted with respect to
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the document, and how each element of the privilege is met for
that document.). Id. at 62-63.
In actuality, lawyers infrequently provide all the basic
information called for in a privilege log, and if they do, it is
usually so cryptic that the log falls far short of its intended
goal of providing sufficient information to the reviewing court
to enable a determination to be made regarding the
appropriateness of the privilege/protection asserted without
resorting to extrinsic evidence or in camera review of the
documents themselves. Few judges find that the privilege log is
ever sufficient to make the discrete fact-findings needed to
determine whether a privilege/protection was properly asserted
and not waived. Further, because privilege review and
preparation of privilege logs is increasingly handled by junior
lawyers, or even paralegals, who may be inexperienced and
overcautious, there is an almost irresistible tendency to be
over-inclusive in asserting privilege/protection. While some of
this tendency is understandable given the consequences of
mistakenly producing privileged/protected information, the
experience of many judges is that when the documents themselves
are reviewed, it often turns out that a much smaller percentage
of documents actually meet the requirements of the asserted
privilege/protection than was claimed by the asserting party.
Counsel should be wary of filing a response to a Rule 34
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document production request that asserts privilege/protection as
a basis for refusing to make requested production without having
a factual basis to support each element of each
privilege/protection claimed for each document withheld, because
doing so is a sanctionable violation of Fed. R. Civ. P. 26(g).
Requesting parties also know of the limited utility of
privilege logs (for they likely have served similar privilege
logs in response to their adversarys discovery requests), and
thus, when they receive the typical privilege log, they are wont
to challenge its sufficiency, demanding more factual information
to justify the privilege/protection claimed. This, in turn, is
often met with a refusal from the producing party, and it does
not take long before a motion is pending, and the court is
called upon to rule on the appropriateness of the assertion of
privilege/protection, often with the producing partys
magnanimous offer to produce the documents withheld for in
camera review. In camera review, however, can be an enormous
burden to the court, about which the parties and their attorneys
often seem to be blissfully unconcerned.
For example, in order for the court to determine whether
the attorney-client privilege was properly asserted regarding a
particular document, the court must make the following fact
determinations:
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(1) the asserted holder of the privilege is
or sought to become a client; (2) the person
to whom the communication was made (a) is a
member of the bar of a court, or his
subordinate and (b) in connection with this
communication is acting as a lawyer; (3) the
communication relates to a fact of which the
attorney was informed (a) by his client (b)
without the presence of strangers (c) for
the purpose of securing primarily either (i)
an opinion on law or (ii) legal services or
(iii) assistance in some legal proceeding,
and not (d) for the purpose of committing a
crime or tort; and (4) the privilege has
been (a) claimed and (b) not waived by the
client.
In re Allen, 106 F.3d 582, 600 (4th. Cir. 1997) (holding also
that a district court's holding that the attorney-client
privilege does not protect communications rest[s] essentially on
determinations of fact). Id. at 601. Sometimes the document
itself makes this clear, such as when the lawyer writes to the
client to provide an opinion and the correspondence reflects
that it is a confidential communication. Often times, however,
it is impossible to determine if the privilege applies without
extrinsic evidence, which must be provided by affidavit,
deposition transcript, or other source. The time it takes the
court to review this extrinsic evidence on a document-by-
document basis can be extensive, particularly given the tendency
of lawyers to be over-inclusive in the assertion of
privilege/protection in the first place. It should go without
saying that the court should never be required to undertake in
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camera review unless the parties have first properly asserted
privilege/protection, then provided sufficient factual
information to justify the privilege/protection claimed for each
document, and, finally, met and conferred in a good faith effort
to resolve any disputes without court intervention. United
States v. Zolin, 491 U.S. 554, 571-72 (1989) ([W]e cannot
ignore the burdens in camera review places upon the district
courts, which may well be required to evaluate large evidentiary
records without open adversarial guidance by the parties . . . .
Before engaging in in camera review . . . the judge should
require a showing of a factual basis adequate to support a good
faith belief by a reasonable person . . . that in camera review
of the materials may reveal evidence to establish the claim [of
privilege/protection].) (internal citations omitted); United
States v. Family Practice Assocs. of San Diego, 162 F.R.D. 624,
627 (S.D. Ca. 1995) (Prior to an in camera review there must
first be a sufficient evidentiary showing of a legitimate issue
as to application of a privilege or other protection. In camera
review should not replace effective adversarial testing of the
claimed privileges and protection.); Diamond State Ins. Co. v.
Rebel Oil Co., 157 F.R.D. 691, 700 (D. Nev. 1994)(In camera
review is generally disfavored. It is not to be used as a
substitute for a partys obligation to justify its withholding
of documents. In camera review should not replace the effective
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adversarial testing of the claimed privileges and protections.
Resort to in camera review is appropriate only after the
burdened party has submitted detailed affidavits and other
evidence to the extent possible.) (internal citations omitted);
and Caruso v. Coleman Co., 1995 W.L. 384602, at * 1 ([R]esort
to in camera review is appropriate only afterthe burdened party
has submitted detailed affidavits and other evidence to the
extent possible. Unfortunately, this court is put in the
untenable position of having to speculate in order to determine
which privileges apply to the individual documents. A court has
the right to refuse to engage in such speculation, since the
burden of proving the attorney-client or work-product privileges
rests on the party claiming the privilege.) (internal citations
omitted) (emphasis in original); Weber v. Paduano, No. 02 Civ.
3392, 2003 WL 161340, at *14 (S.D.N.Y. Jan. 22, 2003) (holding
in camera review should not be undertaken routinely, but only
after the party asserting privilege has submitted an adequate
record to support the claim); Bowne of New York City v. AmBase
Corp., 150 F.R.D. 465, 475 (S.D.N.Y. 1993) (AmBases suggestion
of in camera review in lieu of an evidentiary presentation is
misplaced. Such review . . . is not, however, to be routinely
undertaken, particularly in a case involving a substantial
volume of documents, as a substitute for a partys submission of
an adequate record in support of its privilege claims.); and
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Conde v. County of Suffolk, 121 F.R.D. 180, 190 (E.D.N.Y. 1988)
(After giving defendants an opportunity to respond (with a
brief and possible supplemental affidavits or declarations), the
court can determine whether the defendants have made the
requisite threshold showing to invoke the privilege. If the
court finds that the defendant has not satisfied its threshold
burdens, direct disclosure is in order. If the threshold
burdens are met, the court may then review the materials at
issue in camera and decide which, if any to withhold from
disclosure.).
All of this has led to some fairly strongly worded
statements from courts about what a party must do to
substantiate its claim of privilege or protection. SeeParkway
Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group,
116 F.R.D. 46, 48 (M.D.N.C. 1987) (Disputes over whether the
attorney-client privilege has been waived through inadvertent
production of the documents or on the basis of the fraud or
crime exception to the privilege often involve contested facts
necessitating an evidentiary showing. Generally, the proponent
or party claiming rights or benefit of an assertion bears the
burden of establishing his contention.); Caruso, 1995 WL
384602, at *1 (A general allegation of privilege is
insufficient. Instead, a clear showing must be made which sets
forth the items or categories objected to and the reason for
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40
that objection. Accordingly, the proponent must provide the
court with enough information to enable the court to determine
the privilege, and the proponent must show by affidavit that
precise facts exist to support the claim of privilege.); United
States v. Burns, 162 F.R.D. 624, 627-28 (S.D. Cal. 1995)
(finding Defendants failure to make out a factual showing by
detailed affidavits or other evidence waived privilege);
Nutmeg Ins. Co. V. Atwell, Vogel & Sterling, 120 F.R.D. 504, 510
(W.D. La. 1988) (In considering whether a proponent of the
privilege is entitled to protection, the courts must place the
burden of proof squarely upon the party asserting privilege.
Accordingly, the proponent must provide the court with enough
information to enable the court to determine privilege, and the
proponent must show by affidavit that precise fact exist to
support the claim of privilege.); Church of Scientology Intern.
v. U.S. Dept. of Justice, 30 F.3d 224, 231 (1st Cir. 1994)
("These declarations are written too generally to supplement the
index in any meaningful way. . . . Thus, none of the functions
of the index . . . are served: the declarations do not
demonstrate careful analysis of each document by the government;
the court has not been assisted in its duty of ruling on the
applicability of an exemption; and the adversary system has not
been visibly strengthened."); United States v. First State Bank,
691 F.2d 332, 335 (7th Cir. 1982) ("A taxpayer need not reveal
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41
so many facts that the privilege becomes worthless but he must
at least identify the general nature of that document, the
specific privilege he is claiming for that document, and facts
which establish all the elements of the privilege he is
claiming. These allegations must be supported by affidavits.");
In re French, 162 B.R. 541, 548 (Bankr. D.S.D. 1994) ("Debtor
did, indeed, file an affidavit claiming the privilege, but the
timing was off, and, even then, it was in the form of a
'blanket' assertion rather than articulated specific facts
giving rise to a privilege.").
Thus, insuring that a privilege or protection claim is
properly asserted in the first instance and maintained
thereafter involves a several step process. First, pursuant to
Fed. R. Civ. P. 26(b) (5), the party asserting
privilege/protection must do so with particularity for each
document, or category of documents, for which
privilege/protection is claimed. At this first stage, it is
sufficient to meet the initial burden by a properly prepared
privilege log. If, after this has been done, the requesting
party challenges the sufficiency of the assertion of
privilege/protection, the asserting party may no longer rest on
the privilege log, but bears the burden of establishing an
evidentiary basisby affidavit, deposition transcript, or other
evidence for each element of each privilege/protection claimed
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for each document or category of document. A failure to do so
warrants a ruling that the documents must be produced because of
the failure of the asserting party to meet its burden. If it
makes this showing, and the requesting party still contests the
assertion of privilege/protection, then the dispute is ready to
submit to the court, which, after looking at the evidentiary
support offered by the asserting party, can either rule on the
merits of the claim or order that the disputed documents be
produced for in camera inspection.
In this case, the court made it clear to the Defendants
that they were obligated to follow this procedure. See Letter
Order, Dec. 28, 2007, Paper No. 194, and Pl.s Letter of Feb 20,
2007 at 3, Paper No. 212, (citing to the Transcript of Dec. 21,
2007 Telephone Hearing. pp 16-17, when the court outlined the
procedures to be used when submitting a privilege log). The
Plaintiff argues that Defendants failed to comply with the
courts order, and the Defendants have not demonstrated that
they did. Had I not ruled that any privilege/protection already
was waived, then the effect of a failure by the Defendants to
comply with the courts order regarding the proper manner in
which to assert privilege/protection would have warranted an
order to produce the materials for failure to carry the burden
of demonstrating the existence of the privilege/protection
claimed.
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Conclusion
For the reasons stated, the court finds that the Defendants
waived any privilege or work-product protection for the 165
documents at issue by disclosing them to the Plaintiff.
Accordingly, the Plaintiff may use these documents as evidence
in this case, provided they are otherwise admissible. In this
regard, the Plaintiff has only sought use of the documents
themselves, and the court has not been asked to rule, and
accordingly does not, that there has been any waiver beyond the
documents themselves.
Dated: Thursday, May 29, 2008 /S/_______
Paul W. Grimm
United States Magistrate Judge